Discursive Democracy: A Model for Rethinking Deliberation in the EU
Discursive democracy provides several highly useful insights for thinking of the legitimation of European democracy. Indeed, it is surprising that Dryzek himself did not apply it more explicitly to the EU. Before turning to the empirics, it is important to explain how discursive democracy addresses those pitfalls of deliberative democracy that have been outlined above. First, Dryzek calls for democratising rationality (Dryzek, 1990) by contrasting instrumental rationality with communicative rationality, that is, the coordination of action through discussion oriented towards intersubjective understanding and common socialisation (Dryzek, 1990, p. 14). Communicative rationality is not grounded on interest maximisation and ‘can pertain to the generation of normative judgments and action principles rather than just a selection of means to ends’ (Dryzek, 1990, p. 14). In this respect, Dryzek argues for the rehabilitation of rhetoric and emotions with regard to representation and deliberation (Dryzek, 2010, ch. 4). Dryzek's critical assessment of rationality is important, since the EU can be seen as a bureaucratic system relying on over-rationalised procedures for policy making. As such, building democratic legitimacy may mean weakening the bureaucratic-rational dimension of legitimacy.
Second, Dryzek is concerned with the contribution of critical political theory to political praxis in order to tackle the problems of contemporary democracy (Dryzek, 1990, p. 19; 2010, p. 8). In this respect, he proves sceptical about the practical relevance of deliberation in ideal conditions of speech, and underlines that the idea of a possible overarching consensus has been very much put into perspective by most advocates of deliberative democracy (Dryzek, 2010; Elster, 1998b). He therefore stresses the potential of deliberation with regard to voice, and conceives discursive democracy as a process of contestation of discourses in the public sphere (Dryzek, 1990, p. 33), and hence as a process retaining the potential for resistance to the hegemony of instrumental rationality (Dryzek, 1990). It then becomes clear that the outcome of deliberation cannot be exclusively conceived as a consensus, since ‘the key to conflict resolution is the reconstruction of private or partial interests into publicly defensible norms through sustained debate’ (Dryzek, 1990, p. 124; see also Elster, 1998b, p. 12). Rather, it should be conceived as a working agreement based on the mutual acceptance of different – but still reasonable – motives and which can be located in the ‘conceptual space between a communicatively achieved consensus and a strategically bargained compromise’ (Dryzek, 2002, p. 5; Eriksen, 2006). When examining empirical examples of deliberative arenas – what Dryzek calls discursive designs – such as processes for international conflict resolution, dispute settlements, citizens' parliaments and mini-publics, the aim is to generate an understanding across different frames of reference (Dryzek, 1990, pp. 53–4), rather than to achieve the definitive reconciliation of conflicting values.
Interestingly, Dryzek holds that, because of the decentralisation of power relations and the absence of a state as such, international arenas are more favourable to discursive designs than national states. This point runs counter to the reflections of a number of intellectuals and political theorists who deny democratic legitimacy to the EU on the grounds that only the framework of the nation state can guarantee the exercise of democratic rights by the sovereign people (Lacroix, 2010). Dryzek further establishes the (ideal) features of discursive systems, which help to conceive deliberation in highly fragmented and large-scale polities such as the EU. He notably distinguishes the public space, which includes all citizens and all forms of social communication, from an empowered space where deliberation in institutions producing collective decisions occurs. Both spaces should be connected through mechanisms of transmission, via which the public space exerts influence on decisions, and on accountability, and by means of which actors in the empowered space shall respond and endorse the decisions made. Meta-deliberation over the organisation and functioning of deliberation constitutes the last element of the system, while decisiveness refers to the degree to which these five elements together determine the content of collective decisions (Dryzek, 2010, pp. 11–2). This means that, whereas deliberation and public discussion serve participation, they should not be restricted to symbolic politics, but should also have an impact on policy outcomes. Eventually, Dryzek seeks to resolve the tension between representation and participation in defining deliberative legitimacy as the resonance of collective decisions with public opinion, defined in terms of the provisional outcome of the engagement and contestation of discourses in the public sphere as transmitted to public authority in empowered space (Dryzek, 2010, p. 40). Again, such a conceptualisation helps to make sense of legitimacy in the EU in so far as, because of the persistence of national institutional and symbolic structures, legitimacy can only rely on mediation and discursive interactions. Building on the empirical study of the conflict over the EU services directive, the next section demonstrates how the possibility of having a contentious debate at the European level can not only have a major impact on decision making but also enhance the legitimacy of EU policies and institutions.
I argue that the EU can function as a polity where democratic legitimacy is granted by deliberation. However, this holds only under two conditions. First, deliberation must be conflict tolerant; that is, it must allow for the voicing of dissent and also facilitate the channelling of dissent into political institutions. Second, supranational institutions and decision making can only be responsive and engage in alleviating conflict through deliberation when conflict is structured along transnational – as opposed to national – lines. In the case of contention over the Bolkestein Directive, this is allowed by the co-decision procedure. Roughly speaking, the conflict over services liberalisation in the EU can be divided into two broad phases. From January 2004 to June 2005, a range of (relatively radical) left-wing organisations succeeded in organising bottom-up contentious mobilisation and Europe-wide politicisation of the Bolkestein Directive proposal. After the shock of the failed referenda for the ratification of the European Constitutional Treaty (ECT) in France and the Netherlands, a second phase started, where conflict was alleviated by deliberation within the parliamentary and governmental arenas. In the perspective of Dryzek's discursive democracy, these two phases reflect a two-stage deliberative process in which politicisation and the expression of conflict in the public sphere lead to a transmission of grievances to an empowered space, therefore guaranteeing the decisiveness of deliberation. The in-depth study2 of the impact of contentious debates on decision making allows us to begin to specify the mechanisms connecting conflict and democratic legitimacy.
Contention and the Production of Linkage in the Political System
The mechanism of transmission put forward by Dryzek echoes the concept of linkage in classical democracy theory, that is, the idea that democratic legitimacy derives from a connection between citizens and decision makers. In the highly fragmented European political system, such linkage is particularly weak. MEPs remain hardly known in their constituencies, and turnout in European elections has dramatically decreased since 1979. Moreover, governments often avoid endorsing decisions made at EU level and are rather inclined to engage in ‘blame shifting’ to the EU. In contrast, the eruption of conflict in the European decision-making process implied the mobilisation of all channels leading from the citizens to the top of decision making at the EU level. This process relies on the simultaneous formation of coalitions in the three countries under study (namely Belgium, France and Germany) and the Europeanisation of conflict. Mobilisation started in Belgium a couple of weeks after the adoption of the directive proposal by the Commission. A broad coalition, including all organisations of the Belgian Social Forum, gathered around the Parti socialiste under the banner ‘Stopbolkestein’. Following a lively controversy with Commissioner Bolkestein's spokesman on the Belgian national broadcasting medium,3 a first demonstration against the Bolkestein Directive was organised as early as May 2004 in Brussels. These events therefore allowed an efficient politicisation in the Belgian media and political sphere. Through common activist networks among the unions and Attac, the debate then diffused towards France. A coalition building on networks of the radical left used the Bolkestein issue intensively when launching its campaign against the ECT in October 2004. The services directive increasingly gained importance in French public discourse, thus directing the referendum campaign towards the social issues at stake with EU policies and forcing the main party leaders and President Chirac to take a critical stance. In Germany, early mobilisation by the Linkspartei and Attac could not achieve high visibility in the public sphere. However, the contestation against the Commission proposal gathered pace in 2005, when the SPD entered the debate, under combined pressure from the unions and the German rapporteur in the EP in the context of the French referendum. Therefore, the conflict rested on national coalitions and succeeded in mobilising a public debate in the national public spheres.
Furthermore, the contentious actors of the left adapted their strategy to the multi-level structure of the EU. Following a well-known typology in the social movement literature, they used a threefold strategy of transnationalisation, supranationalisation and internalisation of the conflict (Della Porta and Caiani, 2007; Imig and Tarrow, 2002). First, the associations, unions and parties diffused contentious expertise and arguments among the transnational networks built on long-established relationships between national trade unions or the European Social Forum. Second, they also used the more institutionalised connections within supranational platforms, in particular the European party federations and EP groups and the ETUC. Third, traditional channels of influence within national parliaments and governments were also mobilised. Moreover, the strategy was adapted to the peculiar institutional architecture of the EU. While the European Commission was targeted as the main antagonist in the conflict, all organisations were aware that they could have most influence on the EP and the Council via national governments. Many political groups or individual MEPs were open to resistance to the Commission's project; hence, from 2005 on, the EP was very often pictured as an ally in the conflict. The debate therefore contributed towards creating some linkage between the empowered space of decision making, on the one hand, and the larger public sphere as well as grassroots members of unions and associations on the other. Beyond linkage, there was even a mechanism of transmission with, for the first time in the history of European politics, a clear impact on decision making. The frame analysis nevertheless shows that the bottom-up transmission of grievances was possible not only because of institutional adaptation to the multi-level structure of the EU, but to a great extent also because of a very efficient and transnational framing of the issue.
Contention and the Production of Meaning
The in-depth frame analysis shows that the framing of services liberalisation as a case for the defence of a social Europe was decisive in allowing for an impact of mobilisation on co-decision (Crespy, 2010). In 2004 and early 2005, the idea of the necessary defence of the European social model spread out from the most radical and peripheral organisations (Attac, neo-communist parties, leftist unions) to more central actors in the European decision-making process (social democratic parties, the ETUC, the Socialist Group in the EP, etc.). Beyond the very general normative model of social Europe, the various organisations shared a common framing, as far as more specific levels of discourse are concerned. In relation to political programmes and paradigms, the idea of regulation and harmonisation – as opposed to deregulation and competition – were central discursive elements underpinning criticism towards the directive proposal. As far as policy problems are concerned, all organisations focused to a large extent on the impact of liberalisation and deregulation on the provision of public services and social dumping. Of course, the frame analysis shows national and ideological variations, especially as far as explicit criticism of the EU as a neo-liberal polity is concerned. But overall, the defence of social Europe became a common frame allowing for some discursive coherence (and partial coordination) within a loose and heterogeneous coalition. Both cognitive coordinative discourse within policy communities and normative communicative discourse addressing public opinion at large were important. But while the former is the usual modus of European politics, a clear articulation and salience of the latter by European elites is much more unusual. Framing performs meaning work (Benford and Snow, 2000); that is, it makes sense of integration while mobilising ideas and counter-ideas, thus providing a substance for a deliberative public sphere to exist. For sure, such a framing entailed an important strategic dimension and does not meet the requirement of ideal deliberative speech. However, it allowed the transformation of particular interests to a generalisable common interest. This was particularly important for the contentious actors to escape the Eurosceptic label.
Framing in terms of social Europe proved to be particularly efficient and brought about a certification of contentious discourse by central decision makers, that is, an external authority's signal of its readiness to recognise and support the existence and claims of a political actor (Tilly and Tarrow, 2007, p. 215). In the first half of 2005, the impact of discourse is strongest. In the context of the French referendum campaign, President Chirac radicalised the French position and personally committed the country against the Commission proposal. In a more spectacular fashion, the German government, which had so far supported the country of origin principle in the Council, reversed its position. Under the combined pressure of the unions, the SPD group in the Bundestag and the German rapporteur in the EP, Chancellor Schröder came to adopt a critical discourse towards the Bolkestein proposal. At the European Council in March 2005, it is clear that many decision makers adopted the framing emanating from the left-wing mobilisation. The Prime Minister of Luxembourg and holder of the EU Presidency, Jean-Claude Juncker, Jacques Chirac, Guy Verhofstadt, Gerhard Schröder and José Manuel Barroso themselves all said that social dumping should be avoided, and the Council conclusions invoke the defence of the European social model. Discursive interactions therefore took the form of deliberation resulting in preference changes and were a main driver of decision making.
Extra-Parliamentary Opposition and the Regulation of Conflict
While discursive contention can be seen as a desirable primary stage of deliberation, democratic politics also relies on the (partial and temporary) resolution of conflict through working agreements. While the notion of extra-parliamentary opposition refers to ambivalent experiences in the history of European regimes,4 it can feed a renewed approach to political opposition (Brack and Weinblum, 2011) by connecting protest with institutionalised forms of decision making. In the West German republic of the 1960s, for instance, the protest movement led by students was labelled ausserparlamentarische Opposition (APO). Originally it protested against the emergency laws passed by the Bundestag without any party objecting; it then mobilised more broadly for the de-Nazification of the German establishment and against nuclear weapons and the war in Vietnam. Extra-parliamentary opposition was used by young people to make themselves heard, as they did not feel represented by their MPs. The principle underpinning extra-parliamentary opposition is that when the possibility for opposition is absent or defective in the parliamentary arena, opposition should be voiced by citizens in the public sphere. It is therefore an interesting heuristic device to reflect on forms of opposition in the EU, which is deprived of formal parliamentary opposition. The idea is to underline the possible interactions between MEPs and civil society organisations. On the one hand, the latter can hope for support for their claims, while on the other the former – when they are in the minority – can use protest and voice to strengthen their position within the assembly. These reflections bring us back to traditional categories of opposition established in the literature such as classical opposition versus principled opposition (Kirchheimer) or constitutional opposition versus anti-system opposition (Sartori). With regard to the EU, it is suspected that, in the absence of organised opposition against policies, grievances against the EU are more likely to turn into anti-system opposition (Mair, 2007). The conflict over the Bolkestein Directive shows that, when they are channelled into the institutional system, resistances led by outsiders can to a large extent be defused and alleviated.
More specifically, the connection between extra-parliamentary contestation and intra-parliamentary decision making happens through the validation of contentious discourses emanating from the former through the latter. The normative relevance of such a process is grounded in the idea that, in political systems lacking a unified demos, the representation of discourses may be as relevant as that of groups or individuals (Dryzek and Niemeyer, 2008). Besides the social Europe frame, the idea of a parliamentary compromise, which we have conceptually defined as a working agreement, was a main theme used by actors, both within and outside the assembly, to turn a majority of MEPs into allies of the movement. The idea of an agreement over the proposal – rather than a mere rejection – reflected the ideological preference of the Social Democrats, the group in charge of the report. This reflects a conception of European integration where liberalisation is accepted as a main instrument for building the internal market, leaving national states with some capacity for social regulation. Rather than the rejection of the draft, such a strategy geared towards an agreement was very efficient in convincing the European People's Party (EPP) group that there was a need for amending the Commission proposal. However, negotiations were difficult. The mobilisation of public opinion and organised civil society was a great asset for the Social Democrat rapporteur Evelyne Gebhardt. The ETUC was crucial, both inside and outside the parliamentary arena. On the one hand, it endorsed the leadership of protest, rallying two major Euro-demonstrations in Brussels and in Strasbourg, in spite of tumultuous relationships with the alterglobalist movement. On the other hand, it was a precious ally for the rapporteur since it played the role of a broker between the two main EP groups, while promoting and reformulating major amendments. In Dryzek's terms, the ETUC acted as a transmission channel between the public and the empowered spaces. In February 2006, while about 50,000 people were demonstrating in front of the Parliament building in Strasbourg, a majority of MEPs voted for a substantially amended version of the directive which limits the scope of application, preserves labour law and waters down the country of origin principle.
While the debate over the Bolkestein Directive had a detrimental impact on the ratification of the ECT in France, it can be argued that it enhanced the legitimacy of EU policy over services and the legitimacy of EU institutions, primarily that of the EP. Although the first reading of the EP is only an early stage of the co-decision procedure, conflict was diffused as a result of parliamentary agreement. Even the most contentious groups could not find convincing arguments for further mobilisation. The parliamentary agreement had a similar compelling effect on the Council. After the first reading of the EP, European ministers were still divided. The endorsement of the agreement forged in the EP turned out to be the only possible term for agreement. Subsequently, the directive went through the Council's first and second readings almost unchanged. The most contentious actors in the process – Attac, the leftist unions and the French Socialists – were not satisfied with the final outcome of co-decision, which they found still belonged to a neo-liberal agenda of integration. However, many actors involved expressed positive views about the impact of contention over the decision-making process. The role of the EP as a channel for the voice of civil society into the institutional system of the EU was especially underlined. In contrast to an inflexible Commission and a closed Council, the EP enjoyed a better reputation among left-wing activists. Thus they strategically insisted on the fact that the EP was responsible for listening to the vox populi and restoring the democratic legitimacy of the EU against the background of the rejection of the ECT by the French and the Dutch. For most actors, the conflict was therefore a symbolic victory, accounting for the ability of contentious mobilisation to have an impact on the European decision-making process.5 Many representatives of the Union mentioned the contribution of the episode to enhanced coordination and communication within organised civil society in the EU.6 Some even considered the conflict as evidence for the progress of democracy in the EU.7 The emerging picture is that of an extra-parliamentary movement performing the role of an opposition while connecting with the elected representatives. The expression of conflict in the public sphere and its alleviation by parliamentary decision making therefore not only had an impact on the legislative outcome; it also had an impact on the subjective perceptions of the EU. Overall, the democratic legitimacy of the EU as a whole was enhanced because it accounted for the capacity of the EU to be responsive towards public opinion and secure decisiveness of deliberation.